New Phase Realty, LLC, assignor and prior owner v. Jeremy J. Fournier

• Court: Supreme Court of Rhode Island
• Decided: July 8, 2025
• Docket: 2024-0215-Appeal. and 2024-0216-Appeal.
• Status: Published

Opinion

Supreme Court

No. 2024-215-Appeal. No. 2024-216-Appeal. (KC 21-689)

New Phase Realty, LLC, assignor : and prior owner, et al.

v. :

Jeremy J. Fournier et al. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

New Phase Realty, LLC, assignor : and prior owner, et al.1

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Robinson, for the Court. The plaintiffs, Daniel B. Struebing and

Amanda L. Lyons, appeal in these consolidated trespass and adverse possession

cases from the entry of summary judgment in favor of the defendants, Jeremy J.

Fournier and Jennifer M. Fournier. On appeal, the plaintiffs contend, inter alia, that

the hearing justice overlooked the fact that a “seizure” by the United States

government of the plaintiffs’ property interrupted the running of the statutory time

period relative to the defendants’ adverse possession claim. The plaintiffs also

contend that the hearing justice impermissibly acted as a factfinder and that he

1 New Phase Realty, LLC was one of the initial parties in this case. However, as shall be seen, the only appellants at this time are Daniel B. Struebing and Amanda L. Lyons. -1- overlooked the federal district court’s express determination regarding the forfeiture

of the lot in question.

This case came before the Supreme Court pursuant to an order directing the

parties to appear and show cause why the issues raised in this appeal should not be

summarily decided. After considering the written and oral submissions of the parties

and after carefully reviewing the record, we conclude that cause has not been shown

and that this case may be decided without further briefing or argument.

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court.

I

Facts and Travel

In November of 2008, defendants purchased a parcel of real property located

at 11 Bradford Court in West Warwick, Rhode Island. The plaintiffs are the owners

of an adjacent lot, which is located at 17 Bradford Court in West Warwick. In

December of 2008, according to defendants, they began “clearing debris” from a

triangular area in the corner of their backyard; said triangular area is the portion of

land that is in dispute between defendants and plaintiffs—it being plaintiffs’

contention that they are the owners of that triangular area of land.

According to defendants, from December 2008 through December 2018, they

removed vegetation and trees, planted grass (which was maintained through

-2- mowing), and engaged in gardening in the disputed area. Further, according to

defendants, in September of 2016, they “installed a fence on the property.” They

have also pointed to the fact that the area in dispute has been utilized by their children

for activities such as sledding and is an area which their dog visits. Additionally,

they assert that they have paid taxes on the disputed area, stating: “Since 2008, we

have paid taxes for 13,330 sq. ft. as assessed by the Town of West Warwick; our

surveyed land, without the disputed area, is 10,328 sq. ft.” In summary, defendants

posit that they have “exclusively maintained” the area in dispute and that they have

not observed anyone else enter that triangular area.

According to the affidavit of Mr. Santo Lombardi,2 “federal government

agents raided” the property at 17 Bradford Court when it was previously owned by

one Zhijun Zhao. And, in a “Declaration” by special agent Alan J. Sims of the

United States Drug Enforcement Administration, it is stated that a search warrant

was executed for the 17 Bradford Court property on April 9, 2019. A Motion for

Writ of Entry was filed on behalf of the United States government on October 7,

2019 in the United States District Court for the District of Rhode Island, which reads

in pertinent part as follows: “The Civil Asset Forfeiture Reform Act of 2000, * * *

specifically allows for issuance and execution of a writ of entry ‘for the purpose of

2 According to Santo Lombardi’s affidavit, which was filed in support of plaintiffs’ motion for summary judgment, he is the majority owner of New Phase Realty, LLC. -3- conducting an inspection and inventory of the property’ and further provides that the

execution of such a writ ‘shall not be considered a seizure.’” (Quoting 18 U.S.C.

§ 985(b)(2).)

In a verified complaint “for forfeiture in rem” filed by an Assistant United

States Attorney on October 3, 2019, it was stated that plaintiffs’ property had “not

been seized but it is located within this district and within the jurisdiction of the

Court. The United States does not request authority from the Court to seize the * * *

Property at this time.” Later, on February 25, 2020, a default judgment and final

order of forfeiture of the 17 Bradford Court property was entered in the federal

district court. That final judgment indicated that the 17 Bradford Court property was

forfeited to the United States and that “all right, title, and interest” in the property

“is hereby vested in the United States.” On March 23, 2021, an interlocutory order

granting the United States the authority to sell the 17 Bradford Court property was

also entered in the federal district court. The interlocutory order stated in pertinent

part: “The Property shall be sold free and clear of any and all interests, claims and

liens of any and all potential claimants and upon the closing of the sale of the

Property * * *.”

On April 27, 2021, New Phase Realty, LLC purchased the 17 Bradford Court

property. On August 10, 2021, New Phase Realty, LLC filed a complaint in the

Superior Court against defendants setting forth claims for trespass (Count 1); slander

-4- of title (Count 2); declaratory judgment (Count 3); and injunctive relief (Count 4).

On August 31, 2021, plaintiffs filed an amended complaint setting forth the same

counts so as to reflect the transfer of the 17 Bradford Court property from New Phase

Realty, LLC to Daniel B. Struebing and Amanda L. Lyons. The defendants

thereafter filed an answer and counterclaim, alleging that they owned the disputed

area by virtue of adverse possession.

Thereafter, defendants filed a motion for summary judgment on their

counterclaim. A hearing justice denied defendants’ motion without prejudice on

October 18, 2023, expressing concern that, due to the forfeiture proceedings relative

to the 17 Bradford Court property, the federal district court retained jurisdiction over

the matter. The plaintiffs filed a motion for summary judgment on December 4,

2023, contending that the Superior Court did not have jurisdiction “over the federal

seizure of the subject property” and that, because the federal district court “ruled that

the property is to be sold by special warranty deed * * *, the federal court’s Order

of sale is res judicata.”

As a result of the hearing justice’s ruling on defendants’ initial motion for

summary judgment, on December 7, 2023, defendants filed a “Motion for Relief

from Judgment or Order” in the federal district court, seeking relief from “Order and

Judgment entered in this action retaining jurisdiction.” On December 11, 2023, a

“text order” was entered by the federal district court, granting defendants’ motion

-5- for relief from judgment. Specifically, the order indicated that the federal district

court’s retention of jurisdiction to enforce its final judgment on the forfeiture action

did not preclude the Superior Court from addressing the legal dispute involving the

17 Bradford Court property. As a consequence of that December “text order” of the

federal district court, on December 20, 2023, defendants filed a renewed motion for

summary judgment.

A hearing on the cross-motions for summary judgment was held on May 13,

2024 before a hearing justice in the Superior Court who was different from the

hearing justice who had ruled on defendants’ initial motion for summary judgment.

After acknowledging that the federal district court had resolved the jurisdictional

issues, the hearing justice delivered a bench decision relative to the adverse

possession claim over the triangular area of property. The hearing justice first found

that there were no genuine issues of material fact in dispute. He further found that

defendants had presented compelling evidence that satisfied the elements required

to prevail on a claim for adverse possession. In support of that decision, the hearing

justice emphasized the following facts gleaned from affidavits filed on behalf of

defendants as well as from other exhibits attached to their motion for summary

judgment:

“On November 19, 2008, Defendants purchased their property located at 11 Bradford Court. Since moving into their property at that time, they have identified the disputed land as part of their property. After moving into -6- their property, Defendants have cleared debris and cleaned up their yard including the disputed land and continuously done routine yard work on the disputed land including the removal of trees, mo[w]ing grass, removing poison ivy, clearing off leaves, and planting a garden. Defendants have also enjoyed recreational activities on the disputed land including their children sledding down the hill in the winter, and playing on the hill in the summer, and the Defendants’ dog has also used the disputed land to relieve himself and run around on.”

In his decision, the hearing justice made note of the fact that defendants installed a

fence in 2016 “incorporating the disputed land on their side of the fence” and the

fact that no one “complained of trespass at the time of that installation * * *.” He

further underscored that no one has ever “crossed into the disputed land, and that

[defendants] pay taxes on the disputed land.”

The hearing justice found that, because defendants’ “statutory possession

began running at the latest on December 31, 2008, ten years of continuous

possession would elapse on December 31st, 2018.” He further ruled hypothetically

that, even if the April 9, 2019 warrant that was executed by the United States

government were a seizure of the 17 Bradford Court property, defendants had

already satisfied the statutory time period for an adverse possession claim by that

point in time. Accordingly, the hearing justice ruled that defendants had, by clear

and convincing evidence, established that they “actually, openly, notoriously,

continuously, and exclusively used the disputed land for a period of time from at

least December 31, 2008 to April 9, 2019 * * *.” He additionally ruled that, because -7- he found that defendants had prevailed on their adverse possession claim, plaintiffs’

claims of trespass and slander of title and their prayers for declaratory and injunctive

relief had become nugatory. Accordingly, the hearing justice granted defendants’

motion for summary judgment on their counterclaim and denied plaintiffs’ motion

for summary judgment.

An order reflecting the hearing justice’s decision as well as a final judgment

were entered on May 21, 2024. On May 24, 2024, plaintiffs filed a notice of appeal;

on that same day, they filed another notice of appeal that was labeled as a

cross-appeal.

II

Issues on Appeal

On appeal, plaintiffs assert that the seizure of the 17 Bradford Court property

by the United States government interrupted the running of the statutory time period

relative to defendants’ adverse possession claim. They also argue that the hearing

justice acted as a factfinder in rendering his decision. Additionally, it is plaintiffs’

contention that the doctrine of res judicata applies because the judgment in the

forfeiture action in the federal district court was binding on the Superior Court.

-8- III

Standard of Review

It is a basic principle that this Court “reviews the granting of a motion for

summary judgment on a de novo basis; in so doing, we employ the same rules and

standards that the hearing justice used.” Estate of Giuliano v. Giuliano, 949 A.2d

386, 391 (R.I. 2008). We have stated that, “[i]n addressing a motion for summary

judgment, the evidence is to be examined in a light most favorable to the nonmoving

party, and we will affirm the judgment if we conclude that there are no genuine

issues of material fact and that the moving party is entitled to judgment as a matter

of law.” Meeks v. Stop & Shop Supermarket Company, LLC, 289 A.3d 1179, 1183

(R.I. 2023) (internal quotation marks omitted). In addition, we have emphasized that

it is “important to bear in mind that the purpose of the summary judgment procedure

is issue finding, not issue determination.” Estate of Giuliano, 949 A.2d at 391

(internal quotation marks omitted). When we conduct our review, we are cognizant

that “[s]ummary judgment is a drastic remedy, and a motion for summary judgment

should be dealt with cautiously.” Id. at 390 (internal quotation marks omitted). The

nonmoving party must “prove the existence of a disputed issue of material fact” by

competent evidence and may not “rely upon mere allegations or denials in the

pleadings, mere conclusions or mere legal opinions.” Id. at 391 (internal quotation

marks omitted).

-9- IV

Discussion

On appeal, plaintiffs first contend that the federal government seized the 17

Bradford Court property when it executed a search warrant and that that seizure

interrupted the running of the statutory time period relative to defendants’ adverse

possession claim. The defendants argue that plaintiffs’ contention in that regard “is

proved false by the government’s pleadings in the Federal District Court Action.”

Moreover, defendants add that, even if the property had been seized due to the April

2019 search warrant, they had already adversely possessed the area in dispute as of

November 2018.

In addressing plaintiffs’ argument, we need go no further than to look at the

plain language of the Verified Complaint for Forfeiture In Rem and the Motion for

Writ of Entry. In paragraph four of the verified complaint, the federal government

specifically represents that 17 Bradford Court had “not been seized.” Paragraph

three of the Motion for Writ of Entry further provides that execution of a writ of

entry “for the purpose of conducting an inspection and inventory of the property

* * * shall not be considered a seizure.” (Internal quotation marks omitted.) It is our

view that these documents establish that, when the federal government executed a

search warrant for the 17 Bradford Court property in April of 2019, the property was

not seized. Simply put, the federal government’s intervention that took place in 2019

- 10 - did not interrupt the running of the statutory time period relative to defendants’

adverse possession claim.

As for plaintiffs’ remaining arguments, even assuming arguendo that the

federal government’s actions with respect to the property in April of 2019 did

constitute a seizure that ultimately resulted in the forfeiture action, plaintiffs’

position still fails. As will become clear infra, defendants had already satisfied the

statutory time period for an adverse possession claim with respect to the disputed

area in December of 2018. As such, we next address the merits of defendants’

This Court has established that a “party may acquire land pursuant to the

doctrine of adverse possession when the elements identified in the General

Assembly’s codification of this method of acquisition are met.” Union Cemetery

Burial Society of North Smithfield v. Foisy, 292 A.3d 1205, 1214 (R.I. 2023)

(internal quotation marks omitted).

General Laws 1956 § 34-7-1 provides:

“Where any person or persons, or others from whom he, she, or they derive their title, either by themselves, tenants or lessees, shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during that time, claiming the same as his, her or their proper, sole and rightful estate in fee simple, the actual seisin and possession shall be allowed to give and make a good and rightful title to the person or persons, their heirs and assigns forever; and any plaintiff suing for the - 11 - recovery of any such lands may rely upon the possession as conclusive title thereto, and this chapter being pleaded in bar to any action that shall be brought for the lands, tenements or hereditaments, and the actual seisin and possession being duly proved, shall be allowed to be good, valid and effectual in law for barring the action.”

We have also stated that, in order “to obtain title by adverse possession, a

claimant must prove actual, open, notorious, hostile, continuous, and exclusive use

of the property under a claim of right for at least a period of ten years.” Union

Cemetery, 292 A.3d at 1214 (internal quotation marks and brackets omitted). In

order to prevail on a claim of adverse possession, a party “must establish the required

elements by strict proof, that is, proof by clear and convincing evidence.” Clark v.

Buttonwoods Beach Association, 226 A.3d 683, 690-91 (R.I. 2020) (quoting

DiPippo v. Sperling, 63 A.3d 503, 508 (R.I. 2013)). This Court has further made

clear that “[u]pon ten years of uninterrupted, quiet, peaceful and actual seisin and

possession of the land, good and rightful title vests immediately in the adverse

claimant.” Id. at 691 (quoting Carnevale v. Dupee, 783 A.2d 404, 412 (R.I. 2001)).

In the instant case, it is our opinion that, at the summary judgment stage, the

motion justice correctly held that defendants had established by clear and convincing

evidence that they had satisfied the elements of their adverse possession claim over

the disputed triangular portion of land. As the hearing justice indicated, the

affidavits of defendants as well as other exhibits attached to their motion for

summary judgment established that, since 2008, defendants had identified the - 12 - disputed area as part of their property and had maintained the property as their own,

including paying taxes on it. The maintenance of the disputed area included clearing

debris, removing trees and other vegetation, mowing grass, and planting a garden.

See Union Cemetery, 292 A.3d at 1217-18. The hearing justice also noted that

defendants have used that disputed area for recreational activities for their children

and for use by their dog. See Acampora v. Pearson, 899 A.2d 459, 467 (R.I. 2006)

(stating that the plaintiffs, who had established a claim for adverse possession, “used

the disputed property, which [was] essentially a side yard, as any owner of this

residential land would—they cut the lawn, maintained the property, and used it for

outdoor activities”). The record also reveals that, in 2016, defendants installed a

fence in that area, with no objection from anyone. See Anthony v. Searle, 681 A.2d

892, 898 (R.I. 1996) (affirming the trial justice’s finding that a landowner satisfied

the elements of adverse possession by planting trees, maintaining a lawn, and

making other improvements such as the “erection of a rabbit hutch and two cold

frames”).

It is our opinion that defendants proffered more than enough evidence to

establish that the ten-year statutory time period was met and that defendants’

ownership by adverse possession over the disputed portion of the property vested in

December of 2018. See Union Cemetery, 292 A.3d at 1214-15. Lastly, we

underscore that plaintiffs have not presented any contradictory evidence and that

- 13 - there has been no refutation of the statements that defendants have set forth in their

affidavits. See Estate of Giuliano, 949 A.2d at 391 (stating that the party opposing

summary judgment may not “rely upon mere allegations or denials in the pleadings,

mere conclusions or mere legal opinions”).

Accordingly, we perceive no error in the hearing justice’s grant of the

defendants’ motion for summary judgment and in his denial of the plaintiffs’ motion

V

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the

Superior Court. The record may be returned to that tribunal.

- 14 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

New Phase Realty, LLC, assignor and prior owner, et Title of Case al. v. Jeremy J. Fournier et al. No. 2024-215-Appeal. Case Number No. 2024-216-Appeal. (KC 21-689)

Date Opinion Filed July 8, 2025

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Written By Associate Justice William P. Robinson III

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Kevin F. McHugh

For Plaintiffs:

Edward J. Mulligan, Esq. Attorney(s) on Appeal For Defendants:

Jennifer M. Fournier, Esq.